Director of Public Prosecutions v Gray

[2015] VCC 1236

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

RICHARD GRAY (A pseudonym)

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	25 August 2015
DATE OF SENTENCE:	25 August 2015
CASE MAY BE CITED AS:	DPP v Gray
MEDIUM NEUTRAL CITATION:	[2015] VCC 1236

REASONS FOR SENTENCE
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Subject:Criminal Law - sentence 

Catchwords: Plea of guilty to one charge of blackmail and one charge of failing to answer bail – demands made of victim to pay $300 or recording of her having sex would be placed on Facebook – victim scared of possible public humiliation and adversely affected by demands over several days- early plea – no prior convictions – admissions – remorse – very good prospects for rehabilitation – good work history – whether order under s.464ZF warranted.

Cases Cited: Boulton v R [2014] VSCA 342

Sentence:      CCO for 2 years.      

NOTE: A pseudonym  was used to protect the identity of the complainant.  ---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Malobabic	OPP
For the Accused	Ms C. Beissman	VLA

HER HONOUR: 

1Richard Gray[1], you have pleaded guilty to one charge of blackmail and one charge of failing to answer bail.

[1] pseudonym

2Around midnight on 1 April 2014, you contacted the complainant, a friend whom you had known for some years, and told her that you had a recording of her having sex with your brother in the spare bedroom of her house.  You said you had seen the recording and that it would "bring her down".  You said you wanted $300 from her and that if she did not pay, the recording would be posted on Facebook.  You told her you would come to her house to pick up the money on Friday 4 April.

3Whilst you were speaking to the complainant, she could hear you typing and you then repeated back to her everything she had said.  You told her you were sorry but someone whom you identified as R was making you do it, that he was a dangerous man and that she should not get involved with him.

4The complainant asked to see the recording but you said you could not send it to her and she had to come to your house to see it.

5Over the next few days, you telephoned the complainant nine times.  She reported the matter to the police on 3 April at a time when she was in hospital and was scared that she would not be able to pay the money by Friday.

6The complainant told police that she had had sex with your brother in April 2013 while her boyfriend was asleep in his bedroom.  She said she and your brother were both very intoxicated and were not capable of recording anything.  She suspected that perhaps someone has recorded them from outside the window which made her very scared.

7She was very scared of the consequences which might occur if the recording was posted on Facebook for everyone to see, that she was unsure as to why you were doing this to her.

8You were interviewed by the police on 11 April and essentially you made admissions.  You told them that what you had done was a joke that had got out of hand, that you were bored one night and wanted to play a game with the complainant.  You said the recording did not exist but the complainant had believed the story.  You said you had no intention of getting the money from her, but you played along with the complainant's belief in the threat and continued to tell her to pay.  You had taken objection to her having cheated on her boyfriend who was also a friend of yours, and apparently took it upon yourself by means of this ill-conceived spontaneous plan to seek some form of justice for him.

9You also told the police that you felt bad about what you had done and felt ashamed.  You wanted to write a letter of apology to her but you were told not to by the police.  In fact an intervention order was obtained preventing you from contacting her.

10You were released on bail and failed to appear at Heidelberg Magistrates' Court on 19 June 2014.  Some delay in the progress of this case is explained by the fact that you were initially charged with blackmail but the charge was changed to that of stalking.  The informant had intended, or was intending, to recommend diversion as a sentencing disposition, but the magistrate who heard the case on 11 December 2014 declined to accept your plea to the charge of stalking and the case was adjourned to enable the police to confer with the Office of Public Prosecutions as to the appropriate charge.

11I accept that the delay has caused you some stress while living in apprehension as to whether or not you would receive a prison sentence.

12In March this year, you were charged with blackmail and at the committal mention in May, you indicated that you would plead guilty.  That is accepted as a plea at the earliest possible time consistent with your intention all along, and this has expedited the progress of the case since then.  It has avoided the need for a trial and importantly, saved the complainant from having to give evidence.  I also accept it as evidence of remorse which you expressed to the police as well.  Pleading guilty entitles you to a discount from your sentence and I shall take that into account.

13You were aged 30 at the time and you are now 31, a man with no previous convictions, with a good work history, and carrying out a responsible role in helping to care for a large family.  The offending itself was not sophisticated and a very small amount of money was demanded.  You maintained the threat for four days, a relatively short time but of long duration for the complainant, who was very scared and distressed.

14In her victim impact statement, she said she was deeply hurt at your betrayal of her trust in you, the trust that she had in you as a good friend, and the crime has caused strained relations within her family and the loss of friends.  She has had to turn to professional help to enable her to move on in her life.  She generously expressed the hope that you would be able to do the same.

15Despite the severe impact on the complainant, the offending was a low-level case of what is otherwise a very serious crime.  Fortunately, you did not combine the offending with any other criminal behaviour, although your repeated demands to the complainant over the four-day period is a form of aggravation.

16I turn now to your personal circumstances.  You were previously married and you are the father of four children of that relationship, all of whom live with their mother.  You were still engaged in family law proceedings to have access to the children.  You are now married again, to Kelly, who is the mother of six children and you now act as father to them.

17In October last year, you attempted suicide by overdose of prescription medication and you were placed on a mental health care plan by your general practitioner.  That plan lapsed but has now been resurrected.

18On leaving school at the age of 16, you started work as a screen printer and worked in that trade until 2011 when the fumes involved had begun to cause chest pains, forcing you to leave the trade.  You have been in receipt of Centrelink benefits since then but you are about to start work with your uncle. 

19Your prospects of rehabilitation are very good and there is every chance that you will not offend again.

20This is a case where appropriate punishment, together with the other purposes of sentencing, can be achieved by means other than imprisonment.  The maximum penalty for blackmail is 15 years' imprisonment, and for failing to answer bail, 12 months.

21Since the decision in Boulton's case, it has been accepted that even in some cases of serious crime, a community correction order is sufficiently punitive and can meet the requirements of general deterrence as well.  The prosecution does not take issue with the submission by your counsel that a community correction order is appropriate in your case and you have been assessed as suitable.

22Will you stand now, please.

23I will impose a community correction order that will begin today and will last for two years.  There will be convictions recorded for both offences.  You will be under supervision, and you must perform 100 hours of unpaid community work over six months.  You must have assessment and any necessary treatment in relation to the use of alcohol and your current mental health treatment will be monitored.  An appointment has been made for you to attend the Corrections office tomorrow as 2 pm, and the address is the Ground Floor, 909 High Street, Reservoir.

24If you had pleaded not guilty to these charges, I would have imposed a community correction order for four years, with 200 hours of unpaid work.

25The final matter concerns the prosecution application for an order for a forensic sample to be obtained under s.464ZF of the Crimes Act.  It was submitted on your behalf that this is not warranted as you are unlikely to reoffend in such a way as to involve a DNA analysis, that no DNA was involved in the offending and that you have no prior criminal history.  I take the view that in the circumstances, a forensic sample is not warranted and the application is refused.

26Are there any other matters?

27MS MALOBABIC:  No, Your Honour.

28HER HONOUR:  All right.  The order is ready for signature now.  Ms Beissman, do you want to have a look at it before your client signs it?

29MS BEISSMAN:  Yes please, Your Honour.

30HER HONOUR:  That's everything done?  Thank you.

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